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August 17, 2001

No. 2--99--1176

The petitioner, Jennifer B., appeals from the October 4, 1999,order of the circuit court of De Kalb County requiring therespondent, Leslie King, to pay her $700 in attorney fees. Onappeal, the petitioner argues that the trial court erred in (1) failing to order the respondent to pay all of the $2,018.52 inattorney fees she incurred in seeking the enforcement of a priororder; and (2) allowing the respondent to pay the judgment ininstallments.

On March 27, 1998, the petitioner filed a petition seeking toestablish that the respondent was the father of her minor child,M.C.B., and requesting that he be ordered to pay child support. The respondent subsequently admitted paternity. On December 29,1998, the trial court entered an order requiring the respondent topay $210.51 per week in child support and day care for M.C.B.

On January 25, 1999, the petitioner filed a petition forattorney fees incurred in prosecuting the paternity petition. OnApril 12, 1999, the trial court entered an order requiring therespondent to contribute $1,200 toward the petitioner's attorneyfees. The respondent was allowed to pay this amount ininstallments of $100 per month.

On June 8, 1999, the petitioner filed a petition for a rule toshow cause and attorney fees. The petition alleged that therespondent had failed to make any payments as required by the April12, 1999, order and was currently $200 in arrears.

On August 19, 1999, the trial court found the respondent inindirect civil contempt for his failure to make the paymentsrequired by the April 12, 1999, order. On September 3, 1999, thetrial court subsequently discharged the finding of contempt afterthe petitioner paid all the amounts owing.

On September 22, 1999, the petitioner filed another petitionfor a rule to show cause and attorney fees. The petition allegedthat the respondent was $100 in arrears for the payments he wasrequired to make under the April 12, 1999, order.

On September 28, 1999, the trial court entered an orderrequiring the respondent to immediately pay to the petitioner theentire remaining balance on the April 12, 1999, judgment. On thatsame day, the petitioner filed a petition for attorney fees thatshe had incurred in seeking the enforcement of the trial court'sApril 12, 1999 order. This petition included an itemized list of$2,018.52 in attorney fees and costs.

On October 4, 1999, following a hearing on the petitioner'spetition for attorney fees, the trial court entered judgment onbehalf of the petitioner in the amount of $700. The trial courtfurther ordered that the respondent pay this amount within fourmonths. The trial court declined to require the respondent to paythe entire $2,018.52, finding that $700 was all the respondent wasable to pay. Following the denial of her motion to reconsider, thepetitioner filed this timely notice of appeal.

Before addressing the merits of the petitioner's appeal, wenote that the respondent has failed to file a brief. However,because the issues presented are relatively straightforward, wewill nonetheless decide this case without an appellee's brief. SeeFirst Capitol Mortgage Corp. v. Talandis Construction Corp., 63Ill. 2d 128, 133 (1976).

The petitioner's first contention on appeal is that the trialcourt erred in not awarding her all of the $2,018.52 in attorneyfees she incurred in seeking the enforcement of the trial court'sApril 12, 1999, order. The petitioner contends that, under section508(b) of the Illinois Marriage and Dissolution of Marriage Act(the Dissolution Act) (750 ILCS 5/508(b) (West 1998)), an award ofthese fees was mandatory.

Under the Illinois Parentage Act of 1984 (750 ILCS 45/1 etseq. (West 1998)), a party has the right to petition for attorneyfees and the right to seek the enforcement of any such award. 750ILCS 45/15, 17 (West 1998). If a party incurs additional attorneyfees in seeking to enforce a prior order of the trial court, thatparty is to be awarded his or her attorney fees under the samestandard as provided for under section 508(b) of the DissolutionAct (750 ILCS 5/508(b) (West 1998)). Davis v. Sprague, 186 Ill.App. 3d 249, 252-53 (1989). Section 508(b) provides in pertinentpart:

"In every proceeding for the enforcement of an order orjudgment when the court finds that the failure to comply withthe order or judgment was without compelling cause orjustification, the court shall order the party against whomthe proceeding is brought to pay promptly the costs andreasonable attorney's fees of the prevailing party." 750 ILCS5/508(b) (West 1998).

Section 508(b) is a mandatory provision by which the trialcourt must, in an enforcement proceeding such as this one, orderthe delinquent parent to pay the other parent's costs andreasonable attorney fees. In re Marriage of Walters, 238 Ill. App.3d 1086, 1098 (1992). However, the court may exercise itsdiscretion when deciding whether the delinquent parent's failure topay support was without compelling cause or justification. In reMarriage of Wassom, 165 Ill. App. 3d 1076, 1081 (1988). Once adetermination has been made that the failure to pay child supportwas without cause or justification, then the trial court isdirected by the statute to award costs and reasonable attorneyfees. Wassom, 165 Ill. App. 3d at 1081.

The policy behind section 508(b) is to eliminate the financialburden on a custodial parent that is the consequence of anenforcement action. Wassom, 165 Ill. App. 3d at 1081. This isbecause in some instances it is possible that the amount ofattorney fees and costs will exceed the amount of arrearage. Fogliano v. Fogliano, 113 Ill. App. 3d 1018, 1023 (1983). In sucha case, there would be no advantage in enforcement and thedelinquent party could escape his obligations under the prior courtorder. See Fogliano, 113 Ill. App. 3d at 1023.

Here, the record reveals that on April 12, 1999, the trialcourt ordered the respondent to pay $1,200 to the petitioner ascontribution for the attorney fees she incurred in prosecuting herpaternity petition. After the respondent failed to pay this amountin the time directed by the trial court, the trial court found himin contempt on August 19, 1999. This contempt finding establishedthat the petitioner's noncompliance with the prior order waswithout compelling cause or justification. See In re Marriage ofBetts, 155 Ill. App. 3d 85, 105 (1987) (contempt finding carrieswith it an implicit finding that failure to comply with order waswithout compelling cause or justification). As such, section508(b) required the trial court to award the petitioner the costsand reasonable attorney fees she incurred in seeking theenforcement of the trial court's prior order. See Wassom, 165 Ill.App. 3d at 1081. However, rather than analyzing thereasonableness of the attorney fees and costs the petitioner wasrequesting, it appears that the trial court made its award based onthe respondent's ability to pay such fees. This was an improperfactor for the trial court to consider in awarding fees pursuant tosection 508(b). See In re Marriage of Wiley, 199 Ill. App. 3d 223,233 (1990).

We believe that excusing the respondent from paying all of thepetitioner's reasonable attorney fees based on his ability to paywould be contrary to the clear dictates of section 508(b) and wouldbe inequitable. Had the respondent complied with the terms of thetrial court's April 12, 1999, order, the petitioner would not haveneeded to resort to the trial court for relief. Instead, due tothe respondent's noncompliance with this order, the petitionerincurred additional attorney fees and costs related to theenforcement proceedings. In such a situation, we believe therespondent should be responsible for these additional fees andcosts rather than the petitioner. Accordingly, as the trialcourt's award of attorney fees to the petitioner was based on itsimproper consideration of the respondent's ability to pay them, wevacate its award.

However, due to the protracted litigation in this case, wedecline to remand this case for additional proceedings and willinstead presently review the reasonableness of the fees thepetitioner requests. In awarding reasonable attorney fees incurreddue to an enforcement proceeding, the court is to consider thecomplexity of the case and the time expended by the lawyersinvolved and their respective abilities. In re Marriage ofStanley, 133 Ill. App. 3d 963, 974 (1985). We have consideredthese factors and the itemized list of attorney fees that thepetitioner submitted to the trial court in relation to the fees sheincurred in seeking the enforcement of the trial court's April 12,1999, order. We believe that most of the $2,018.52 in attorneyfees and costs the petitioner requests are reasonable. However, ofthis amount, the petitioner seeks $100 for attorney fees and costsshe incurred in having the name of the minor, M.C.B., changed. These fees were not related to the enforcement of the trial court'sprior order and cannot be awarded under section 508(b). Additionally, the petitioner requests attorney fees and costs of$201.30 that she estimated would be incurred in the future. Asthere is no evidence that the fees and costs were actuallyincurred, we decline to award this amount as well. Aside fromthese charges, we believe that the remainder of the attorney feesand costs the petitioner requests are reasonable, and we enterjudgment for the petitioner in the amount of $1,717.22 pursuant toSupreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)).

In so ruling, we need not address the petitioner's secondcontention that the trial court erred in allowing the respondent topay the judgment over a four-month period.

For the foregoing reasons, we vacate the order of the circuitcourt of De Kalb County and enter judgment in favor of thepetitioner for $1,717.22 on her petition for attorney fees andcosts.

Order vacated; judgment entered.

O'MALLEY and GROMETER, JJ., concur.